One “Dissent” in the Taylor Case

by Kevin Jon Heller

At International Criminal Law Bureau, Kirsty Sutherland calls attention to a surprise moment during the Taylor verdict that has received, to the best of my knowledge, absolutely no attention from the media:

In an unexpected turn of events, as Justice Lussick (Presiding), Justice Doherty and Justice Sebutinde rose to leave the courtroom after delivering the verdict, Justice Sow addressed the Court:

“The only moment where a Judge can express his opinion is during the deliberations or in the courtroom, and, pursuant to the Rules, when there are no serious deliberations, the only place left for me is the courtroom. I won’t get — because I think we have been sitting for too long but for me I have my dissenting opinion and I disagree with the findings and conclusions of the other Judges, because for me under any mode of liability, under any accepted standard of proof, the guilt of the accused from the evidence provided in this trial is not proved beyond reasonable doubt by the Prosecution. And my only worry is that the whole system is not consistent with all the principles we know and love, and the system is not consistent with all the values of international criminal justice, and I’m afraid the whole system is under grave danger of just losing all credibility, and I’m afraid this whole thing is headed for failure.”

Hearing the voice of their counterpart did not deter Justices Lussick, Doherty and Sebutinde from walking out. Justice Sow’s microphone immediately cut out and a curtain was drawn across the public gallery. Nonetheless, he persisted to air his views to those present, unaided by a microphone.

Pretty stunning stuff. Judge Sow’s views are legally irrelevant, of course, because he was the alternate judge. But he is obviously intimately familiar with the evidence in the case, so his “dissent” supports the idea that the prosecution’s case was remarkably weak.

10 Responses

The Dutch national news showed the dissent, but I haven’t seen many other (international) media pick it up. It’d be interesting for Judge Sow himself to come out and further elaborate on this. But I suppose the confidentiality of deliberations prevent him from doing so. Still, could he publicly explain why he believes the evidence is so flawed?

RNW referred to it in their analysis: http://www.rnw.nl/africa/article/charles-taylor-guilty-aiding-and-abetting-war-crimes

The procedural rules in this instance still aren’t entirely clear to me: are Alternate Judges allowed to speak during the readings of verdicts or not? It doesn’t look good, regardless, but what do the Rules stipulate on this issue?

I don’t think the rules contemplate the situation. Frankly, although I’m fascinated by Judge Sow’s reaction, I don’t think it was particularly appropriate for him to speak in the courtroom. (And I think it would be even more inappropriate for him to issue some kind of written statement.) He was the alternate, after all.

As an alternate judge that was not substituted for any of the sitting judges, it is in my opinion extremely unprofessional for Justice Sow to voice his dissent. The system of ‘alternates’ was of course designed to ensure contiguous direct exposure of all evidence to all judges throughout trial proceedings. I’m not sure whether this was actually the case in practice with Justice Sow, though I note that rule 16bis(a) states that the alternate whould be present at each stage of the trial. In his book “the UN International Criminal Tribunals”, Schabas (2006, at p 598) points out that “[in] practice, alternate judges were designated but they have not actually attended the trials on a regular basis”. Was this still the practice with alternate judges when Charles Taylor’s trial started in 2008? If so, it would be especially egregious for Justice Sow to comment, as he would then be basing his presumptions on an incomplete knowledge of the evidence. I suspect it is more likely that his comments emerged from what he was privy to during the private deliberations of the sitting judges, which is maybe why they did not break stride when he spoke up – but this would be also quite a shocking breach of confidentiality. Can anyone clarify whether Justice Sow was a consistent presence at the Court?

4.27.2012
at 11:34 am EST Kenneth Chan

Fascinating. The fact that the other judges continued to walk out after Judge Sow started speaking (and that his microphone was cut off) suggests they knew what he was going to do and had already decided what their response was going to be, otherwise I would expect some confusion as everybody tries to decide how to handle an unprecedented situation.

Very interesting comments. It certainly doesn’t look good to walk out on a judge (even if he is an alternate) while he is dissenting. I can understand that it may have been inappropriate for Sow to make the comments in the first place, but I’m still unclear as to why it is a problem to give an alternate judge the space to voice his/her opinions on a trial they were deeply involved with. Perhaps it doesn’t have to be in the courtroom itself but, as I understand it, if it’s not appropriate for the alternate judge to give his/her opinion, he/she is the only person in the entire legal process (judges, prosecution, defense, etc.) disallowed from speaking officially about the trial.

Mark. Maybe a better analogy would be having one of the junior prosecutors publicly taking a position on the outcome. Maybe the junior prosecutor has something valuable to add but you can bet the Prosecutor will not be happy with the junior prosecutor and would probably be within his or her rights to fire the junior prosecutor for unprofessional conduct.

4.30.2012
at 11:54 am EST Stuart Ford

After her election as the ICJ Judge (and even more after her sworn-in) Julia Sebutinde must have been substituted, an exactly by the alternate Judge Sow. So Judge Sow has even more rights to speak in court, because it is position of Sebutinde was questionable, not his.

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